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Verified Petition for Writ of Mandate _00167000_

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Verified Petition for Writ of Mandate _00167000_ Powered By Docstoc
					     Robin B. Johansen, State Bar No. 79084
     Thomas A. Willis, State Bar No. 160989
 2   REMCHO,JOHANSEN & PURCELL,LLP
     201 Dolores Avenue
 3   San Leandro, CA 94577
     Phone: (510)346-6200
4    Fax: (510)346-6201
     Email: rjohansen@rjp.com
 5
    Christopher E. Platten, State Bar No. 111971
6   WYLIE, MCBRIDE,PLATTEN & RENNER
    2125 Canoas Garden Avenue, Suite 120
 7 San Jose, CA 95125
    Phone: (408)979-2920
 8 Fax: (408)979-2934
    Email: cplatten@wmprlaw.com
 9
    Gregg McLean Adam, State Bar No.203436
10 CARROLL,BURDICK & MCDONOUGH LLP
    44 Montgomery Street, Suite 400
11 San Francisco, GA 94104
    Phone: (415)743-2534
12 Fax: (415)989-0932
    Email: gadam@cbmlaw.com
13'
14' Attorneys for Petitioners Karen McDonough,
    Franco Vado,Robert Sapien, and
    Clifford G. Hubbard
15
                      IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
16'                                           COUNTY OF SANTA CLARA

17   KAREN MCDONOUGH,FRANC4 VADO,                            No..
     ROBERT SAPIEN,and CLIFFORD G.
18   HUBBARD,                                                Action Filed: March 16, 2012

19                  Petitioners,                             VERIFIED PETITION FOR WRIT OF
                                                             MANDATE
20   vs.
                                                                               Hearin:
21   CITY OF SAN JOSE,DENNIS D. HAWKINS,
     in his official capacity as City Clerk of the City of   Date:    TBD
22   San Jose, and BARRY GARNER,in his official              Time:    TBD
     capacity as Registrar of Voters of the County of        Dept:    TBD
23   Santa Clara,
                                                                     (The Honorable         )
24

25   CITY COUNCIL OF THE CITY OF SAN JOSE,

26                  Real Party in Interest.

27

28


                                    VERIFIED PETITION FOR WRIT OF MANDATE
                    Petitioners KAREN MCDONOUGH,FRANCO VADO,ROBERT SAPIEN,and

2    CLIFFORD G. HUBBARD petition this Court pursuant to Elections Code sections 9295 and 13314 for

3    a writ of prohibition/mandate restraining respondents the CITY OF SAN JOSE, DENNIS D.
4    HAWKINS,acting in his official capacity as City Clerk for the City of San Jose (together the "City

5    respondents"), and BARRY GARNER,acting in his official capacity as the Registrar of Voters for the

6    County of Santa Clara, from placing an unlawful ballot question on the ballot that was drafted and

7    adopted by real party in interest CITY COUNCIL OF THE CITY OF SAN JOSE.

8                   By this verified petition, petitioners allege as follows:

9                                                INTRODUCTION
10                  Over the last two years, the Mayor of San Jose has persistently claimed that the City's
11   economic troubles are due largely to the City's current pension programs and has insisted on drastic,
12   unilateral cuts to pensions of current retirees and employees rather than negotiated changes or a
13   reasonable approach such as limiting reductions to future employees. As a result, the Mayor has
14   enjoyed a degree of celebrity as a point person in the pension debate in California; he has been the
15   subject of countless articles and was prominently featured in Michael Lewis' best-selling book
16   "Boomerang." The problem with being the champion of a cause, however, is that it can often lead to
17   intransigence, insisting on change at all costs even ifthere is no rationale for that change and despite
18   warnings from experts that cuts to the vested rights of retirees or current City employees would be
19   unconstitutional. Speaking solely on her own behalf, the former City Attorney wrote the Mayor to
20   object to the measure's effect on retirees: "I am bewildered as to why the City would undertake an
21   action which so clearly violates the contract clause of the California and the federal Constitutions."
22                  Undeterred, the Mayor and the City Council passed a proposed Charter amendment that
23   would,if passed by the voters in June, give the City Council authority to unilaterally eliminate
24   guaranteed cost ofliving adjustments for current retirees and cut pension disability, retirement, and
25   healthcare benefits for current employees. As part oftheir resolution, they instructed the City Clerk
26   and Registrar of Voters to include a ballot question that flagrantly violates the Elections Code
27   requirement that such materials be fair and impartial. The ballot question must be dealt with now,
28   because of its blatantly prejudicial effect on the voters. As it is currently drafted, the ballot question


                                    VERIFIED PETITION FOR WRIT OF MANDATE
 1   amounts to an argument in favor ofthe measure rather than the impartial and neutral statement

2    required by the Elections Code. As such, it is unlawful and must be revised.

3                   The measure itself presents bigger problems that will be addressed after the election if

4    the measure passes. First, and most importantly, the measure violates the pension and contract rights
5    of City employees by forcing current employees either to accept greatly reduced benefits or assume a
6    portion of the City's unfunded pension liability by making increased contributions to the pension plan.
7    It drastically changes employees' disability rights, making it virtually impossible for an employee to
8    qualify for disability retirement, and it allows the City Council to suspend cost of living adjustments
9    for current retirees merely by declaring a fiscal emergency.
10                  Second,the measure contains a "poison pill" that would cut current employees' pay

11   four percent per year up to a total of 16 percent if this or any other Court were to invalidate the part of

12   the measure that cuts the vested rights of current employees. That provision is obviously intended as a

13   deterrent to employees who may be thinking of challenging the measure and is a clear violation of

14   those employees' rights to due process and access to the courts. In addition, the measure contains an

15   extraordinary severability clause that gives the City Council, not the courts, the right to decide whether

16   or how any provision found to be unlawful should be severed.

17                                                   PARTIES
18                   1.     Petitioner KAREN MCDONOUGH is a resident, taxpayer, and registered voter
19   ofthe City of San Jose and County of Santa Clara, California. Petitioner MCDONOUGH has been an
20   employee ofthe City of San Jose for 20 years and currently is an environmental service specialist.
21   Petitioner opposes the measure because it would dramatically increase the amount she must pay to
22   keep her current pension benefits and retirement healthcare benefits.
23                  2.      Petitioner FRANCO VADO is a resident, taxpayer, and registered voter of the
24   County of Santa Clara, California. Petitioner VADO is a San Jose police officer who is opposed to the
25   measure because it would dramatically increase the amount he must pay to keep his current pension
26   benefits and retirement healthcare benefits.
27                   3.     Petitioner ROBERT SAPIEN is a resident, taxpayer, and registered voter ofthe
28   County of Santa Clara, California. Petitioner SAPIEN is a San Jose firefighter who is opposed to the

                                                       2
                                    VERIFIED PETITION FOR WRIT OF MANDATE
 1     measure because it would dramatically increase the amount he must pay to keep his current pension

 2     benefits and retirement healthcare benefits.

 3                     4.     Petitioner CLIFFORD G. HUBBARD is a resident, taxpayer, and registered

 4     voter ofthe City of San Jose. Petitioner worked for the San Jose Fire Department for more than

 5     27 years before retiring in 2010. Petitioner is opposed to the measure because it would endanger his

 6     retiree benefits.

 7                     5.     Respondent CITY OF SAN JOSE is a municipal government that operates under

 8     the authority of the San Jose Charter. Under the Charter, Municipal Code, and the State Elections

 9     Code, the City is responsible for its municipal elections, including elections related to Charter

10     amendments. If respondent(and its officers and employees)is not restrained from doing so, it will

11     place the proposed ballot question on the City's June 5, 2012 election ballot and spend public funds

12     doing so, despite the fact that the ballot question is unlawful.

13                     6.     Respondent DENNIS D. HAWKINS is the City Clerk of the City of San Jose

14     and is sued in his official capacity only. Under the City Charter, Municipal Code, and State Elections

15     Code, he is charged with submitting the proposed Charter measure and ballot copy to the County

16     Registrar for all City measures. If respondent is not restrained from doing so, he will place the ballot

17     question on the City's June 5,2012 election ballot, and spend public funds doing so, despite the fact

18     that the ballot question is unlawful.

19                     7.     Respondent BARRY GARNER is the Registrar of Voters ofthe County of Santa

20     Clara and is sued in his official capacity only. Under the State Elections Code, respondent is charged

21     with placing local measures on the County election ballots. If respondent is not restrained from doing

22     so, he will place the CITY COUNCIL'S ballot question on the June 5, 2012 election ballot and spend

23     public funds doing so, despite the fact that the ballot question is unlawful.

24                     8.     Real party in interest CITY COUNCIL OF SAN JOSE "CITY COUNCIL")is
                                                                             (

25 ~ the 1 1-member legislative body of the City of San Jose, which adopted the ballot question at issue in

26     this case.

27

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                                                         3
                                      VERIFIED PETITION FOR WRIT OF MANDATE
 1                                       JURISDICTION AND VENUE
 2                  9.      Petitioners bring this action as a petition for writ of mandate/prohibition

 3   pursuant to Elections Code sections 9295 and 13314. Elections Code sections 9295 and 13314 provide

 4   that petitioners who are electors of the City may seek a writ of mandate when an error or omission has

 5   occurred or is about to occur in the placing of a measure on the ballot, or for any neglect of duty that

 6   has occurred or is about to occur. Such an action has priority over all other civil matters. This action

 7   is properly filed in the County of Santa Clara pursuant to Code of Civil Procedure sections 394

 8   and 395.

 9                                        FACTUAL BACKGROUND
10                  10.     On March 6, 2012, the CITY COiTNCIL voted to adopt Resolution No. 76158,
11   which places a proposed Charter measure on the City's June 5,2012 election ballot and provides the
12   ballot question for the measure. A true and correct copy of Resolution No. 76158 and the
13   accompanying proposed Charter measure is attached hereto as Exhibit A.
14                  11.     The proposed Charter measure seeks to make drastic changes to the City's
15   existing pension, disability retirement, and retiree healthcare programs, changes that would adversely
16   affect current retirees and current City employees. The proposed Charter measure also seeks to create
17   a new retirement plan for future City employees.
18                  12.     The proposed Charter measure would cut the pension benefits of current
19   employees by requiring them either to "opt in" to a new pension plan(known as the Voluntary
20   Election Program or "VEP")with reduced benefits or assume a portion ofthe City's unfunded
21   actuarially accrued liability by making additional contributions to the current pension plan.
22                  13.     If a current employee (defined as an existing City employee as of the effective
23   date ofthe measure) decides not to "opt in" to the VEP,he or she is required to make additional
24   contributions to the pension program "in increments of4% of pensionable pay per year, up to a
25   maximum of 16%,but no more than 50% of the costs to amortize any pension unfunded liabilities."
26 (Proposed Charter, § 1506-A(b).) These contributions are "in addition to" the employee's existing

27   contributions to the pension plan. (Id.) Employees would be required to make the increased
28   contributions beginning on June 23, 2013 "regardless of whether the VEP has been implemented."

                                                      4
                                   VERIFIED PETITION FOR WRIT OF MANDATE
 1   (Id., § 1506-A(c).) Thus, even if the City does not set up the VEP,current employees will be required

     for the first time to start paying 4 percent oftheir salary per year up to 16 percent oftheir total salary to

 3   maintain their current pension benefits and pay for the City's unfunded actuarially accrued liability.

 4                   14.    If the City creates the VEP and an employee decides to "opt in" to the program,

 5   the employee must sign "an irrevocable election waiver(as well as their spouse or domestic partner,

 6   former spouse or former domestic partner, if legally required) acknowledging that the employee

 7   irrevocably relinquishes his or her existing level of retirement benefits and has voluntarily chosen

 8   reduced benefits." (Proposed Charter, § 1507-A.)

 9                  15.     The VEP provides much lower benefits than the current pension plans. For
10   example, under the VEP,retirees' cost ofliving adjustments would be reduced from the current

11   3 percent to a rate that matches the consumer price index for the Bay Area but is capped at 1.5 percent

12   per year. (Proposed Charter,§ 1507-A(b)(v).) Further, the rate of accruing benefits is reduced.

13   Currently a firefighter accrues 2.5 percent per year of pensionable compensation for the first 20 years

14   of service and 3 percent per year thereafter, but under the VEP all City employees would accrue only

15   2 percent oftheir final compensation for each year of service after enrolling in the VEP. (Id., § 1507-

16   A(a)and (b).) Further, the age for retirement eligibility is increased, from 55 as it is currently for

17   members with 20 years of service to 57 under the VEP for police and firefighters, and from 55 as it is

18   currently to 62 under the VEP for other employees with 20 years of service. (Id., § 1507-A(b)(iii).)

19   Under the VEP,the right to retire after 30 years of service would be moved back in 6-month

20   increments each year starting in July 1, 2017. (Id., § 1507-A(b)(iv).) Under the VEP,the final
21   compensation determination would be changed from being based on the highest twelve months of
22   service to the "highest three consecutive years of service." (Id., § 1507-A(b)(vi).) The only aspects of

23   the current normal service pension plan that remain unchanged under the VEP are the ratio for sharing

24   the cost offunding the pension programs(3 for employees and 8 for the City), the maximum benefit,

25   and the pre-retirement survivor death benefit. In addition, under the VEP,survivorship and disability

26   retirement benefits are also reduced.

27                  16.     The "implementation ofthe VEP is contingent upon receipt ofIRS approval"

28   because investment income must accumulate tax-free and employee contributions are made on a pre-

                                                          ~~
                                                          r
                                    VERIFIED PETITION FOR WRIT OF MANDATE
 1   tax basis. (Proposed Charter, § 1507-A.) IRS approval, however, is uncertain at best as the City itself

 2   acknowledges. In a memorandum dated June 23, 2011, the City acknowledged that "the IRS has not
 3   approved any opt in plans since at least 2005 and that there are currently 22 such requests pending with
 4   the IRS. Orange County has had their retirement opt in program for current employees on hold waiting

 5   on IRS approval." (Memorandum, dated June 23, 2011,from Alex Gurza to Mayor and City Council.)
 6   The memorandum concluded that given "the uncertainty of when and if an opt in program would
 7   receive IRS approval, it is difficult to determine when and if savings could be achieved." (Id.) Thus,
 8   the VEP may never be established. Under the Charter measure, however, current employees would be
 9   required to increase their contributions to the current pension plan by 4 percent per year starting in
10   June 2013, up to a total of 16 percent whether or not they are given the option to "opt in" to the VEP.
11                  17.     The Chaxter measure would also change eligibility for disability retirement
12   benefits for all current and future employees. Under the measure, an employee would not be eligible
13   for disability retirement if a panel of medical experts, appointed by the City Council, determines that

14   the employee is capable of engaging in any gainful employment for the City even if there are no such
15   job openings for the employee. (Proposed Charter, § 1509-A.)
16                  18.     The Charter measure would also provide the City Council with unilateral
17   authority to eliminate, at any time, COLAs for current retirees, as well as current and future
18   employees. Under the measure, the City Council could declare "a fiscal and service level emergency"
19 (which is nowhere defined) and suspend, for up to five years, the COLAs currently guaranteed retirees

20   and current employees. (Proposed Charter, § 1510-A.) Thus, under the measure the City Council
21   could eliminate the guaranteed 3 percent COLA to all current retirees immediately upon passage ofthe
22   measure.
23                  19.     The measure would also dramatically cut retiree healthcare benefits for current
24   and future employees. "Existing and new employees must contribute a minimum of50% ofthe cost of
25   retiree healthcare, including both normal cost and unfunded liabilities." (Proposed Charter, § 1512-
26   A(a).)

27



                                                      6
                                   VERIFIED PETITION FOR WRIT OF MANDATE
                    20.        The Charter measure would also fundamentally change the collective bargaining

2    process between the City and employee organizations. Proposed Charter section 1504-A would now

     require voter approval for any increases in pensions or retiree healthcare benefits:
!~                  The voters expressly reserve the right to consider any change in matters
                    related to pension and other post employment benefits. Neither the City
5                   Council, nor any arbitrator appointed pursuant to Charter Section 1111,
                    shall have authority to agree to or provide any increase in pension and/or
6                   retiree healthcare benefits without voter approval, except that the
                    Council shall have authority to adopt Tier 2 pension benefit plans within
7                   the limits set forth herein.
8                   21.        The state Constitution protects the vested retirement rights of public employees

9    by prohibiting laws that impair the obligation of contracts or deprive employees of their property rights

10   without due process oflaw. (Cal. Const., art. I, §§ 7, 9.) The Charter measure violates the vested

11   rights of current employees by increasing their contribution rates for retirement benefits and reducing

12   their disability retirement benefits. Further, the measure violates the vested rights of current City

13   retirees by giving the City Council the right to eliminate the guaranteed 3 percent COLA at any time

14   for up to five years.

15                  22.        As part of Ordinance No. 76158,the City Council approved the ballot question

16   that will appear on the ballot. The ballot question states as follows:

17                  PENSION REFORM
                    To protect essential services, including neighborhood police patrols, fire
18
                    stations, libraries, community centers, streets and parks, shall the Charter
19                  be amended to reform retirement benefits of City employees and retirees
                    by: increasing employees' contributions, establishing a voluntary
20                  reduced pension plan for current employees, establish pension cost and
                    benefit limitations for new employees, reform disability retirements to
21                  prevent abuses, temporarily suspend retiree COLAs during emergencies,
22                  require voter approval for increases in future pension benefits?

                                             FIRST CAUSE OF ACTION
23

24                           (Invalid Ballot Question — Elections Code §§ 10403,9051)
                     23.       Petitioners hereby reallege and incorporate paragraphs 1 through 22 above as if
25
     fully set forth herein.
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                     24.       A ballot question must be neutral and non-argumentative. Elections Code
27
     section 10403 states "the question or proposition to appear on the ballot shall conform to this code



                                      VERIFIED PETITION FOR WRIT OF MANDATE
 1   governing the wording of the propositions submitted to the voters at the statewide election." The
 2   provisions governing statewide measures require the Attorney General to draft the ballot questions so
 3   that they are "true and impartial" and "shall neither be an argument, nor be likely to create prejudice,
 4   for or against the proposed measure." (Elec. Code,§ 9051(b) and (c).)
 5                  25.      The ballot question drafted by the City Council violates Elections Code
 6   sections 10403 and 9051 because it is not impartial but instead is written in a manner that would
 7   greatly prejudice voters in favor ofthe measure. For example,the entire first sentence ofthe ballot
 8   question presents voters with the Hobson's choice of either preserving essential services or lowering
9    pension benefits: "To protect essential services, including neighborhood police patrols, fire stations,
10   libraries, community centers, streets and parks, shall the Charter be amended to reform retirement
11   benefits of City employees and retirees ...?" In addition, the ballot question uses emotionally laden
12   terms such as "reform" and "abuses," and it falsely states that current employees may "voluntarily" opt
13   for a plan with lower benefits, without explaining that if they do not, their pension costs will rise
14   dramatically. Ifthe ballot question is allowed to stand, the voters ofthe City of San Jose maybe led

15   into voting for a measure that is unconstitutional and invalid. At a minimum,the voters deserve to

16   have a ballot question that does not prejudice the electorate into enacting an ordinance that the City
17   Council has determined to push through regardless of its validity.
18                  26.      The ballot question is therefore invalid and an error would occur if it were
19   placed on the ballot. The issuance of a writ will not substantially interfere with the conduct ofthe
20   election because this matter can be heard before the ballot copy is sent to the printers.
21                  WHEREFORE,petitioners pray for judgment as follows:
22                  1.       That this Court issue its writ of mandate pursuant to Elections Code sections
23   9295 and 13314 prohibiting respondents and all persons acting pursuant to their direction and control
24   from taking any steps to place the ballot question as approved in Resolution No. 76158 on the ballot.
25                  2.       That this Court grant petitioners their reasonable attorneys' fees and costs.
26                  3.       That this Court grant such other, different, or further relief as the Court may
27   deem just and proper.

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                                                          s
                                    VERIFIED PETITION FOR WRIT OF MANDATE
 1    Dated: March 16, 2012                  Respectfully submitted,

 2                                           WYLIE, MCBRIDE,PLATTEN & RENNER

 3                                           CARROLL,BURDICK & MCDONOUGH LLP
 4                                           REMCHO,JOHANSEN & PURCELL,LLP
 5

 6                                           By:     ~~=.~.
                                                     in B. Joh    n
 7
                                             Attorneys for Petitioners Karen McDonough,
 8                                           Franco Vado, Robert Sapien, and Clifford G. Hubbard

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                                                 9
                              VERIFIED PETITION FOR WRIT OF MANDATE
 1                                                VERIFICATION

2                     I, Robin B. Johansen, declare:

 3                    I am one ofthe attorneys for petitioners Karen McDonough, et al. I make this

4      verification for the reason that petitioners are absent from the county where I have my office. I have

 5     read the foregoing Verified Petition for Writ of Mandate and believe that the matters therein are true

6. and on that ground allege that the matters stated therein are true.
 7~,                  I declare under penalty of perjury that the foregoing is true and correct. Executed this

8      16th day of March, 2012, at San Leandro, California.

9
10                                                             Robin B. Joha   n

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                                                           1
                                                    VERIFICATION
EXHIBIT A
                                                                    RES NO 76158

                               RESOLUTION NO.76158

             A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN
             JOSE REPEALING RESOLUTION NO. 76087 AND
             CALLING AND GIVING NOTICE OF, ON ITS OWN
             MOTION, THE SUBMISSIC?N TO THE ELECTORS OF THE
             CITY OF SAN JOSE, AT A SPECIAL MUNICIPAL
             ELECTION TO BE HELD ON JUNE 5, 2012, A BALLOT
             MEASURE PROPOSAL TO AMEND THE SAN JOSE CITY
             CHARTER TO ADD A NEW ARTICLE XV-A TO REFORM
             CITY PENSIONS AND BENEFITS PROVIDED TO
             CURRENT EMPLOYEES AND ESTABLISH REDUCED
             PENSIONS AND BENEFITS FOR NEW EMPLOYEES AND
             TO PLACE OTHER LIMITATIONS ON PENSIONS AND
             BENEFITS


WHEREAS,Charter Section 1600 authorizes the City Council #o set the date for a
Special Municipal Election; and


WHEREAS,the City Council adopted Resolution No. 76087 and approved a ballot
measure for the June 5, 2012 election but directed the City Clerk not to submit the ballot
measure to the Registrar of Vo#ers to allow time for further negotiations on the ballot
measure language; and


WHEREAS,the City Council now desires to submit to the electors of the City of San
Jose at a Special Municipal Election a ballot measure proposal to amend the San Josh
City Charter to add a new Article XV-A to reform pensions and benefits for current
employees, to establish reduced pensions and benefits for new employees and to place
other limitations on pensions and benefits; and


NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SAN
JOSE THAT:


SECTION 1. Resolution No. 76087 is hereby repealed.
SECTION 2. A Special Municipal Election is hereby called and ordered to be held in the
City of San Jose on June 5, 2012,for the purpose of voting on a ballot measure to
                                                                  RES NO 76758

amend the San Jose City Charter to add a new Article XV-A to reform pensions and
benefits for current empiayees and to establish different pensions and benefits for new
employees and to place other limitations on pensions and benefits. -The proposed City
Charter amendment is attached to this Resolution as Exhibit A.


SECTION 3. The ballot measure will be placed on the ballot for the June 5, 2012
election in the following form:


PENSION REFORM

       To protect essential services,
       including neighborhood police patrols,
       fire stations, libraries, community
       centers, streets and parks, shat( the
       Charter be amended to reform
       retirement benefifis of City employees
       and refiirees by: increasing
       employees' confiributions, establishing
       a voluntary reduced pension plan for
       current employees, establish pension
       cost and benefit limitations for new
       employees, reform disability
       retirements to prevent abuses,
       temporarily suspend retiree COLAs
       during emergencies, require voter
       approval for increases in future
       pension benefits?




                                            2
                                                                    RES NO 76158

SECTION 4. The City Council hereby requests the Board of Supervisors of the County
of Santa Clara, California to permit the Registrar of Voters of Santa Clara County to
render to the City of San Jose such services as the Cify Clerk of the City of San Josh
may request relating to the conduct of the' above-described Special Municipal Election
with respect to the following matters:

              Coordination of election precincts, polling places, voting
              booths, voting systems and election officers; Printing and
              mailing of voter pamphlets; Preparation of tabulation of result
              of votes cast.

SECTION 5. The City Council hereby requests that the Registrar of Voters of the
County of Santa Clara consolidate the Special Municipal Election called and ordered to
be held on June 5, 2012 with any other election that may be held on that date.


SECTION 6. The City Council hereby authorizes the Board of Supervisors of Santa
Clara County, California to canvass the returns of the Special Municipal Election.


SECTION ?. The City Council hereby directs the City Clerk to reimburse the County of
Santa Clara in full for any of the above-mentioned services which may be performed by
the Registrar of Voters, upon presentation of a bill to the Cify, with funds already
appropriated to the City Clerk for election purposes.


SECTION 8. The City Council hereby directs the City Clerk to.,take all actions
necessary to facilitate the Special Municipal Election in the time frame specified herein
and comply with provisions of the Elections Code of the State of California, Cify Charter,
Ordinances, Resolutions and Policies with regard to the conduct of the Special
Municipal Election.


SECTION 9. Pursuant to Section 12111 of the California Elections Code and Section
6061 of the California Government Code, the City Council hereby directs the City Clerk
to (a)cause a synopsis of the proposed measure to be published in the San Josh
Mercury News, a newspaper of general circulation within the City of San Josh;(b)

                                              3
                                                                    RES NO 76158

consoiidate the Notice of Measure to be Voted with the Notice of Election into a single
notice;(c)transmit a copy of the Measure to the City Attorney and cause the following
statement to be printed in the impartial analysis to be prepared by the City. Attorney: "If
you would (ike to read the full text of the measure, see
www sanjoseca.qov/clerk/elections/Election.asp or call 408-535-1260 and a copy will be
sent at no cost to you.'; and (d) do all other things required by law to submit the
specified measure above to the electors of the City of San Josh at the Special MunEcipal
Election, including causing the full text of the proposed measure to be made available in
the Office of the City Clerk at no cost and posted on the City Clerk's website.


SECTION 10. Pursuant to Sections 9282 and 9285 of the California Elections Code,
the City Council hereby approves~the submittal of arguments for and against the ballot
measure, if any, and authorizes the Mayor to author and submit a ballot measure
argument in favor of the ballot measure and also approves the submittal of rebuttal
arguments in response to arguments for and against the ballot measure and authorizes
any member or members of the City Council to author and submit a rebuttal, if any.


SECTION 11. The City Council hereby directs the City Clerk to transmit a copy of the
measure qualifying for placement on the ballot to the Cify Attorney for preparation of an
impartial analysis.




                                             4
February 8,2012

                            ARTICLE XV-A
                            RETIREMENT
                                                                 i7°
   PUBLIC EMPLOYEE PENSION PLAN AMENDMENTS - TQ
  ENSURE FAIR AND SUSTAINABLE RETIREMENT BENEFITS
      WHILE PRESERVING ESSENTIAL CITY SERVICES

The Citizens of the City of San Jose do hereby enact the following
 amendments to the City Charter which maybe referred to as:
  "The Sustainable Retiremeri~ Benefits and Compensation Acts"

Section 1501-A:          FINDINGS

The following services are essential to the health,safety, quality
of life and well-being of San Jose residents: police protection; fire
protection; street maintenance;libraries; and community centers
(hereafter "Essential City Services").

The City's ability to provide its citizens with Essential City
Services has been and continues to be threatened by budget cuts
caused mainly by the climbing costs of employee benefit
programs,and exacerbated by the economic crisis. The employer
cosh ofthe City's retirement plans is expected to continue to
increase in the near future. In addition,the City's costs for other
post employment benefits - primarily health benefits -are
increasing. To adequately fund these costs,the City would be
required to make additional cuts to Essential City Serrvices.

By any measure, current and projected reductions in service
levels are unacceptable, and will endanger the health,safety and
well-being of the residents of San Jose.


                                    1
837680 2
Council Agenda: 3/6/92
Item No:       3.5(b)
February 8, 2012

Without the reasonable cost containment provided in this Act,the
economic viability ofthe.City, and hence,the City's employment
benefit programs,will be placed a~ an imminent risk.

The City and its residents always intended that post employment
benefits be fair, reasonable and subject to the Gity's ability to pay
without jeopardizing City services. At the same time,the City is
and must remain committed to preserving the health, safety and
well-being of its residents.

By this Act,the voters find and declare that post employment
benefits must be adjusted in a manner that protects the City's
viability and public safety, at the same time allowing for the
continuation of fair posh-employment benefits for its workers.

The Charter currently provides that the City retains the authority
to amend or otherwise change any ofits retirement plans,subject
to other provisions of the Charter.

This Act is intended to strengthen the finances of the City to
ensure.the City's sustained ability to fund a reasonable level of
benefits as contemplated at the dime ofthe voters'initial adoption
ofthe City's~retirement programs. It is further designed to ensure
that future retirement benefit increases be approved by the
voters.

Section 1502-A:          INTENT

This Act is intended to ensure the City can provide reasonable
and sustainable post employment benefits while at the same dime
delivering Essential City Services ~o the residents of San Jose.


                                  2
837680_2
Council Agenda: 3/6/12
Item No:       3.5(b)
February 8, 2012

The City reaffirms its plenary authority as a charter city to control
and manage all compensation provided to its employees as a
municipal affair under the California Constitution.

The City reaffirms its inherent right to act responsibly to preserve
the health, welfare and well-being of its residents.

This Act is not intended ~o deprive any current or former
employees of benefits earned and accrued for prior service as of
the time ofthe Act's effective date; rather,the Act is intended ~o
preserve earned benefifis as of the effective date of the Act.

This Act is not intended to reduce the pension amounts received
by any retiree or to take away any cosh of living increases paid to
retirees as of the effective date ofthe Act.

The City expressly retains its authority existing as of January 1,
2012,to amend,change or terminate any retirement or other post
employment benefit program provided by the City pursuant to
Charter Sections 1500 and 1503.

Section 1503-A.          Act Supersedes All Conflicting Provisions

The provisions of this Act shall prevail over all other conflicting
or inconsistent wage, pension or post employment benefit
provisions in the Charter, ordinances,resolutions or other
enactments.

The City Council shall adopt oardinances as appropriate to
implement and effectuate the provisions of this Act. The goal is
that such ordinances shall become effective no later than
September 30, 2012.


8376$0_2
Council Agenda: 3/6/12
Item No:       3.5(b)
February 8, 2012

Section 1504-A.          Reservation of Voter Authority

The voters expressly reserve the right to consider any change in
matters relayed to pension and other posh employment benefits.
Neither the City Council, nor any arbitrator appointed pursuant to
Charter Section 1111,shall have authority to agree to or provide
any increase in~pension and/or retiree healthcare benefits
without voter approval, except that the Council shall have the
authority to adopt Tier 2 pension benefit plans within the limits
set forth herein.

Section 1505-A.          Reservation of Rights to City Council

Subject to the limitations set forth in phis Act,the City Council
retains its authority to take all actions necessary to effectuate the
terms of this Act,to make any and all changes to retirement plans
necessary to ensure the preservation of the tax status ofthe
plans, and at any dime,or from time to dime,to amend or
otherwise change any retirement plan or plans or` establish new
or different plan or plans for all or any officers or employees
subject to the terms of this Act.

Section 1506-A.          Current Employees

(a) "Current Employees" means employees of the City of San
Jose as ofthe effective date of this Act and who are not covered
under the Tier 2 Plan (Section 8).

(b) Unless they voluntarily opt in to the Voluntary Election
Program "VEP," described herein), Current Employees shall have
         (
their compensation adjusted through additional retirement
contributions in increments of4% of pensionable pay per year,
up to a maximum of 16%,but no more than 50% of the costs ~o

837680_2
Council Agenda: 3/6/12
Item No:       3.5(b)
February 8, 2012

amortize any pension unfunded liabilities, except for any pension
unfunded liabilities that may exist due to Tier 2 benefits in the
future. These contributions shall be in addition to employees'
normal pension contributions and contributions towards retiree
healthcare benefits.                                              .

(c) The starting date for an employee's compensation
adjustment under this Section shall be June 23,2013,regardless
of whether the'VEP has been implemented. If the VEP has not
been implemented for any reason,the compensation adjustments
shall apply to all Current Employees.

(d) The compensation adjustment through additional employee
contributions for Current Employees shall be calculated
separately for employees in the Police and Fire Department
Retirement Pian and employees in the Federated City Employees'
Retirement System.

(e) The compensation adjustment shall be treated in the same
manner as any other employee contributions. Accordingly,the
voters intend these additional payments to be made on a pre-tax
basis through payroll deductions pursuant to applicable Internal
Revenue Code Sections. The additional contributions shall be
subject to withdrawal,return and redeposit in the same manner
as any other employee contributions.

Section 1507-A:           One Time Voluntary Election Program
                          C"~P"1
The City Council shall adopt a Voluntary Electron Program ,
("VEP")for all Current Employees who are members ofthe
existing retirement plans of the City as of the effective date of this
Act. The implementation ofthe VEP is contingent upon receipt of
                                   5
 837680 2
 Council Agenda: 3/6/12
 Item No:       3.5(b)
February 8, 2012

IRS approval. The VEP shall permit Current Employees a one
time limited period to enroll in an alternative retirement program
which,as described herein, shall preserve an employee's earned
benefit accrual; the change in benefit accrual will apply only to
the employee's future City service. Employees who opt into the
VEP will be required to sign an irrevocable election waiver(as
well as their spouse or domestic partner,former spouse or
former domestic partner,if legally required) acknowledging that
the employee irrevocably relinquishes.his or her existing level of
retirement benefits and has voluntarily chosen reduced benefits,
as specified below.

The VEP.shall have the following features and limitations:

(a) The plan shall not deprive any Current Employee who
chooses to enroll in the VEP ofthe accrual rate (e.g. 2.5%)earned
and accrued for service prior to the VEP's effective date; thus,the
benefit accrual rate earned and accrued by individual employees
for that prior service shall be preserved for payment at the time
of retirement.

(b) Pension benefits under the VEP shall be based on the
following limitations:

        (i)              The accrual rate shall be 2.0% of"final
                         compensation", hereinafter defined, per year of
                         service for future years of service only.

        (ii)             The maximum benefit shall remain the same as the
                         maximum benefit for Current Employees.

        (iii)         The current age of eligibility for service retirement
                    _ under the existing plan as approved by the City
                                          6
837680 2
Council Agenda: 3/6/12
Item No:       3.5(b)
February 8,2012

                         Council as of the effective date of the Act for all years
                         of service shall increase by six months annually on
                         July 1 of each year until the retirement age reaches
                         the age of 57 for employees in the Police and Fire
                         Department Retirement Plan and the age of62 for
                         employees in the Federated City Employees'
                         Retirement System. Earlier retirement shall be
                         permitted with reduced payments that do not
                         exceed the actuarial value of full retirement. For
                         service retirement, an employee may not refire any
                         earlier khan the age of 55 in the Federated City
                         Employees'Retirement System and the age of 50 in
                         the Police and Fire Department Retirement Plan.

        (iv)             The eligibility ~o retire at thirty(30) years of service
                         regardless of age shall increase by 6 months
                         annually on July 1 of each year starting July 1, 2017.

        (v)              Cost ofliving adjustments shall be limited to the
                         increase in the consumer price index,(San Jose -San
                         Francisco - Oakland U.S. Bureau of Labor Statistics
                         index, CPI-U, December ~o December),capped at
                         1.5%per fiscal year. The first COLA adjustment
                         following the effective date of the Act will be
                         prorated based on the number of remaining months
                         in the year after retirement of the employee.

        (vi)             "Final compensation" shall mean the average annual
                         pensionable pay ofthe highest three consecutive
                         years of service.

         (vii)           An employee will be eligible for a full year of service
                         credit upon reaching 2080 hours of regular time
                                          z
837680_2
Council Agenda: 3/6/12
Item No:       3.5(b)
February 8, 2012

                         worked (including paid leave, but not including
                         overtime.

(c) The cost sharing for the VEP for current service or current
    service benefits "Normal Cost shall not exceed the ratio of
                     (              ")
    3 for employees and 8 for the City, as presently set forth in~
    the Charter. Employees who opt into the VEP will not be
    responsible for the payment of any pension unfunded
    liabilities ofthe system or plan.

(d) VEP Survivorship Benefits.

         (i)             Survivorship benefits for a death before retirement
                         shall remain the same as the survivorship benefits
                         for Current Employees in each plan.

         (ii)            Survivorship benefits for a spouse or domestic
                         partner and/or children) designated at the time of
                         retirement for death after retirement shall be 50%
                         of the pension benefit that the retiree was receiving.
                         At the time of retirement, retirees can at their own
                         cost elect additional survivorship benefits by taking
                         an actuarially equivalent reduced benefit.

(e) VEP Disability Retirement Benefits.

         (i~      A service connected disability retirement benefit,        as
                  hereinafter defined, shall be as follows:

                  The employee or former employee shall,receive an
                  annual benefit based on 50% of the average annual
                  pensionable pay ofthe highest three consecutive years
                  of service.

837680_2
Council Agenda: 3/6/12
Item No:       3.5(b)
February 8,2012


       (ii) Anon-service connected disability retirement
            benefit shall be as follows:

                The employee or former employee shall receive 2.0%
                times years of City Service(minimum 20% and
                 maximum of 5d%)based on the average annual
                 pensionable pay ofthe highest three consecutive years
                .of service. Employees shall not be eligible fora non-
                service connected disability retirement unless they
                 have 5 years of service with the City.

        (iii) Cost of Living Adjustment "COLA") provisions will be
                                        (
              the same as for the service retirement benefit in the
              VEP.

Section.1508-A:            Future Employees - Limitation on
                           Retirement Benefits -Titer 2

To the extent not already enacted,the City shall adopt a
retirement program for employees hired on or after the
ordinance enacting Tier 2 is adopted. This retirement program -
fornew employees - shall be referred to as "Tier 2."

The Tier 2 program shall be limited as follows:

(a) The program may be designed as a "hybrid plan" consisting
of a combination of Social Security, a defined benefit plan and/or
a defined contribution plan. If the City provides a defined benefit
plan,the City's cost of such plan shall not exceed 50% ofthe total
cost ofthe Tier 2 defined benefit plan (both normal cost and
unfunded liabilities). The City may contribute to a defined
contribution or other retirement plan only when and to the extent

837680_2 ,
Council Agenda: 3/6112
Item No:       3.5(b)
February 8,2012

the total City contribution does not exceed 9%. If the City's share
of a Tier 2 defined benefit plan is less than 9%,the City may,but
shall not be required to, contribute the difference to a defined
contribution plan.

(b) For any defined benefit plan,the age of eligibility for
 payment of accrued service retirement benefits shall be 65,
 except for sworn police officers and firefighters, whose service
 retirement age shall be 6D. Earlier retirement may be permitted
 with reduced payments that do not exceed the actuarial value of
 full retirement. For service retirement,an employee may not
 retire any earlier than the age of 55 in the Federated City
'Employees'Retirement System and the age of 5D in the Police and
 Fire Department Retirement Plan.

(c) For any defined benefft plan, cost ofliving adjustments shall
be limited to the increase in the consumer price index(San Jose
San Francisco - Oakland U.S. Bureau of Labor Statistics index, CPI-
U,December to December),capped at 1.5%per fiscal year. The
first COLA adjustment will be prorated based on the number of
months retired.

(d) For any defined benefit plan,"final compensation" shall
mean the average annual earned pay ofthe highest three
consecutive years of service. Final compensation shall be base
pay only, excluding premium pays or other additional
compensation.

(e) For any defined benefit plan, benefzts shall accrue at a rate
not to exceed 2%per year of service, not to exceed 65% offinal
compensation.


                                10
 837680 2
 Council Agenda: 3!6/12
 Item No:       3,5(b)
February 8,2012

(~ For any defined benefit plan,an employee will be eligible for
a full year of service credit upon reaching 2080 hours of regular
time worked (including paid leave, but not including overtime).

(g) Employees who leave or have left City service and are
subsequently rehired or reinstated shall be placed into the
second tier of benefits (Tier 2). Employees who have at least five
(5) years ofservice credit in the Federated City Employees'
Retirement System or at least ten (10) years of service credit in
the Police and Fire Department Retirement Plan on the date of
separation and who have not obtained a return of contributions
will have their benefit accrual rate preserved for the years of
service prior to their leaving City service.

(h) Any plan adopted by the City Council is subject to
termination or amendment in the Council's discretion. No plan
subject to this section shall create a vested right to any benefit.

Section 1509-A:             Disability Retirements

(a) To receive any disability retirement benefit under any
pension plan, City employees mush be incapable of engaging in
any gainful employment foar the City, but not yet eligible to retire
(in terms of age and years of service). The determination of
qualification for a disability retirement shall be made regardless
of whether there are other positions available at the time a
determination is made.

(b) An employee is considered "disabled"for purposes of
qualifying for a disability retirement,if all of the following is met:

         (i)      An employee cannot do work that they did before; and

                                     11
837680_2
Council Agenda: 3/6/12
Item No:       3.5(b)
February 8,2012

       (ii) It is determined that

                         1) an employee in the Federated City Employees'
                         Retirement System cannot perform any other jobs
                         described in the City's classification plan because
                         of his or her medical condition(s); or

                         2) an employee in the Police and Fire
                         Department Retirement Plan cannot perform any
                         other jobs described in the City's classification
                         plan in the employee's department because of his
                         or hex medical condition(s); and

        (iii) The employee's disability has lasted or is expected to
              last for at least one year or to result in death.

(c) Determinations of disability shall be made by an
independent panel of medical experts, appointed by the City
Council. The independent panel shall serve to make disability
determinations for both plans. Employees and the City shall have
a right of appeal to an administrative law judge.

(d) The City may provide matching funds to obtain long term
disability insurance for employees who do not qualify for a
disability retirement butincur long term reductions in
compensation as the result of work related injuries.

(e) The City shall not pay workers'compensation benefits for
disability on top of disability retireznen~ benefits without an
offset to the service connected disability retirement allowance to
eliminate duplication of benefits for the same cause of disability,
consistent with the current provisions in the Federated City
Employees'Retirement System,
                                         12
837680_2
Council Agenda: 316/12
Item No:       3.5(b)
February 8, 2012


Section 1510-A:          Emergency Measures to Contain Retiree
                         Cost of Living Adjustments

If the City Council adopts a resolution declaring a fiscal and
service level emergency,with a finding that it is necessary to
suspend increases in cost ofliving payments to retirees the City
may adopt the following emergency measures, applicable to
retirees (current and future retirees employed as ofthe effective
date of this Act)

(a) Cost ofli,vi~ng adjustments "COLAs") shall be temporarily
                                  (
suspended for all retirees in whole or in part for.up to dive years.
The City Council shall restore COLAs prospectively (in whole or
in part), if i~ determines that the fiscal emergency has eased
sufficiently to permit the City to provide essential services
protecting the health and well-being of City residents while
paying the cost of such COLAs.

(b) In the event the City Council restores alI or part ofthe COLA,
it shall not exceed 3%for Current Retirees and Current
Employees who did not opt into the VEP and 1.5%for Current
Employees who opted into the VEP and 1.5%for employees in
Tier 2.

Section 1511-A:          Supplemental Payments to Retirees

The Supplemental Retiree Benefit Reserve "SRBR")shall be
                                          (
discontinued, and the assets returned to the appropriate
retirement trust fund. Any supplemental payments to retirees in
addition~to the benefits authorized herein shall not be funded
from plan assets:

                                 13
837680 2
Council Agenda; 3/6/12
Item No;       3.5(b)
February 8,2012

Section 1512-A:          Retiree Healthcare

(a) Minimum Contributions. Existing and new employees
must contribute a minimum of50% ofthe cost of retiree
healthcare, including both normal cost and unfunded liabilities.

(b) Reservation of Rights. No retiree healthcare plan or
benefit shall grant any vested right, as the City retains its power
to amend,change ~or terminate any plan provision.

(c) Low Cost Plan. For purposes of retiree healthcare benefits,
"low cost plan" shall be defined as the medical plan which has the
lowest monthly premium available to any active employee in
either the Police and Fire Department Retirement Plan or
Federated City Employees'Retirement System.

Section 1513-A:          Actuarial Soundness(for both pension
                         and retiree healthcare plans)

(a) All plans adopted pursuant to the Act shall be subject to an
actuarial analysis publicly disclosed before adoption by the City
Council, and pursuant to an independent valuation using'
standards set by the Government Accounting Standards Board
and the Actuarial Standards Board,as may be amended from time
~o time. All plans adopted pursuant to the Act shall: (i) be
actuarially sound;(iii minimize any risk to the City and its
residents; and (iii) be prudent and reasonable in light ofthe
economic climate. The employees covered under the plans must
share in the investment, mortality,,and other. risks and expenses
of the plans.

(b) All of the City's.pension and retiree healthcare plans must be
actuarially sound, with unfunded liabilities determined annually
                                 14
837680_2
Council Agenda: 3/6/12
Item Na:       3.5(b)
February 8,2012

through an independent audit using standards set by the
Government Accounting Standards Board and the Actuarial
Standards Board. No benefit or expense may be paid from the
plans without being actuarially funded and explicitly recognized
in determining the annual City~and employee contributions into
the plans.

(c) Insetting the actuarial assumptions for the plans, valuing
the liabilities of the plans, and determining the contributions
required to fund the plans,the objectives ofthe City's retirement
boards shall be ~o:

         (i)      achieve and maintain full funding ofthe plans using at
                  least a median economic planning scenario. The
                  likelihood offavorable plan experience should be
                  greater than the likelihood of unfavorable.plan
                  experience; and

         (ii) ensure fair and equitable treatment for current and
                  future plan members and taxpayers with respect to the
                  costs ofthe plans, and minimize any intergenerational
                  transfer of costs.

(d) When investing the assets ofthe plans,the objective ofthe
City's retirement boards shall be to maximize the rate of return
without undue risk ofloss while having proper regard to:
         (i)      the funding objectives and actuarial assumptions ofthe
                  plans; and
         (ii) the need to minimize the volatility ofthe plans'surplus
              or deficit and, by extension,the impact on the volatility
              of contributions required to be made by the City or
              employees.
                                      15
837680_2
Council Agenda: 3(6/12
Item No:       3.5(b)
 February 8, 2012


Section 1514-A:          Savings

In the event Section 6(b)is determined to be illegal, invalid or
unenforceable as to Current Employees(using the definition in
Section 6(a)),then,to the maximum extent permitted bylaw,an
equivalent amount of savings shall be obtained through pay
reductions. Any pay reductions implemented pursuant to this
section shall not exceed 4% of compensation each year, capped
at a maximum of 16% of pay.

Section 1515-A:          Severability.

(a) This Act shall be interpreted so as to be consistent with all
federal and state laws, rules and regulations. The provisions of
this Act are severable. If any section,sub-section, sentence or
       (
clause "portion") ofthis Act is held to.be invalid or
unconstitutional by a final judgment of a court,such decision shall
not affect the validity ofthe remaining poxtions of this
amendment. The voters hereby declare that this Act, and each
portion, would have been adopted irrespective of whether any
one or more.portions ofthe Act are.found invalid. If any portion
ofthis Act is held invalid as applied to any person or
circumstance,such invalidity shall not affect any application of
this Act which can be given effect. In particular, if any portion of
this Act is held invalid as to Current Retirees, this shall not affect
the application ~o Current Employees. If any portion of this Act is
held invalid as ~o Current Employees,this shall not affect the
application to New Employees. This Act shall be broadly
construed to achieve its stated purposes. It is the intent of the
voters that the provisions ofthis Act be interpreted or
implemented by the City, courts and others.in a manner that
facilitates the purposes set forth herein.
                                   16
837680 2
Council Agenda. 3/6/12
Item No:       3.5(b)
 February 8, 2012


(b) If any ordinance adopted pursuant to the Act is held to be
invalid, unconstitutional or otherwise unenforceable by a final
judgment,the mater shall be referred to the City Council for
determination as to whether to amend the ordinance consistent
with the judgment, or whether to determine the section severable
and ineffective.




                             17
837680 2
Council Agenda; 3/6!12
Item No:       3.5(b)
                                                              RES NO 76158

ADOPTED this 6th day of March, 2012, by the following vote:


      AYES:              CONSTANT, HE~RRERA, LICCARDO,               NGUYEN,
                         OLIVERIO, PYLE, ROCHA; REED.

      NOES:              CAMPOS, CHU, KALRA.


      ABSENT:            NONE.


      DISQUALIFIED:      NONE.


                                                    CHUCK REED
                                                    Mayor
ATT   T:


DEN S D. HAWKINS, CMC
City Clerk
                                             PROOF OF SERVICE

 2                  I, the undersigned, declare under penalty of perjury that:

 3                  I am a citizen ofthe United States, over the age of 18, and not a party to the within

 4 ~ cause or action. My business address is 201 Dolores Avenue, San Leandro, CA 94577.

 5                  On March 16, 2012, I served a true copy of the following document(s):

 6                                   Verified Petition for Writ of Mandate
 7   on the following party(ies) in said action:
 8  Nora Frimann                                           Attorneyfog Respondents City ofSan Jose and
    Assistant City Attorney                                Dennis D. Hawkins and Real Party in InteNest
 9 Office ofthe City Attorney                              City Council ofthe City ofSan Jose
    200 East Santa Clara Street
10 San Jose, CA 95113
    Phone: (408)535-1900
11 Fax: (408)998-3131
12' Email: nora.frimann@sanjoseca.gov
      Susan Swain                                         Attorneyfog Respondent Barry Garner
13    Office of the County Counsel
      County of Santa. Clara
14''~ 70 West Redding Street, East Wing,9th Floor
      San Jose, CA 95110-1770
15~ Phone: (408)299-5900
      Fax: (408)292-7240
16 Email: Susan.swain@cco.sccgov.org
17'
              BY UNITED STATES MAIL: By enclosing the documents)in a sealed
              envelope or package addressed to the persons) at the address above and
18
                      depositing the sealed envelope with the United States Postal Service, with
19                    the postage fully prepaid.

20              u placing the envelope for collection and mailing, following our ordinary
                  business practices. I am readily familiar with the businesses' practice for
21                collecting and processing correspondence for mailing. On the same day
                  that correspondence is placed for collection and mailing, it is deposited in
22                the ordinary course of business with the United States Postal Service,
                  located in San Leandro, California, in a sealed envelope with postage
23                fully prepaid.
             SY OVERNIGHT DELIVERY: By enclosing the documents)in an envelope
24           or package provided by an overnight delivery carrier and addressed to the persons
             at the addresses listed. I placed the envelope or package for collection and
25           overnight delivery at an office or a regularly utilized drop box ofthe overnight
             delivery carrier.
26
             BY PROCESS SERVER: By placing the documents)in an envelope or
27           package addressed to the persons at the addresses listed and providing them to a
             professional process server for service.
28


                                                   PROOF OF SERVICE
 1            BY FACSIMILE TRANSMISSION: By faxing the documents)to the persons
              at the fax numbers listed based on an agreement of the parties to accept service by
2             fax transmission. No error was reported by the fax machine used. A copy of the
              fax transmission is maintained in our files.
3
              BY EMAIL TRANSMISSION: By emailing the documents)to the persons at
4             the email addresses listed based on a court order or an agreement ofthe parties to
              accept service by email. No electronic message or other indication that the
5             transmission was unsuccessful was received within a reasonable time after the
              transmission.
6
                     I declare, under penalty of perjury, that the foregoing is true and correct. Executed on
7
     March 16, 2012, in San Leandro, California.
8

9
10
                                                       Michael Narciso
11
     (00166513-21)
12

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                                                       2
                                                PROOF OF SERVICE

				
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